Citation Nr: 20043063 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 16-40 430 DATE: June 25, 2020 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for a back disability, to include arthritis (hereinafter “back disability”), is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In a January 2006 rating decision, VA denied service connection for a back disability because there was no current medical evidence of a back disability. In an August 2006 rating decision, VA continued to deny service connection because the Veteran’s back disability was not incurred in or caused by military service. The Veteran did not file a notice of disagreement; therefore, the decision became final. 2. In a September 2012 rating decision, VA continued to deny service connection because the Veteran submitted no additional evidence. The Veteran did not file a notice of disagreement; therefore, the decision became final. 3. Evidence received since the September 2012 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for a back disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1978 to May 1981. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2014 rating decision which reopened a claim of service connection for a back disability, but continued to deny the claim on its merits. In a September 2019 letter, the Board notified the Veteran that they were unable to produce a transcript of an August 2019 Board hearing due to technical difficulties with the audio recording. The Veteran initially requested a new hearing, but withdrew his request in May 2020. The Board notes that VA treatment records were added to the Veteran’s claims file after its certification to the Board. A review of the record shows that VA did not have the opportunity to review this new evidence or issue a subsequent supplemental statement of the case. Although initial AOJ review is automatically waived for evidence submitted by the veteran or his representative when the VA Form 9 is received after February 2, 2013, the automatic waiver does not apply to evidence not submitted by the veteran or his representative. 38 C.F.R. § 20.1305. However, as the Board is remanding this case, the AOJ will have an opportunity to review the evidence such that no prejudice results to the Veteran as a result of the Board’s consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. Reopening of Claims Despite VA’s action to reopen the prior claim based on new and material evidence, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of service connection for a back disability before addressing the claim on its merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 19.20, 19.52. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim of service connection for a back disability. In a January 2006 rating decision, VA denied service connection for a back disability because there was no current medical evidence of a back disability. VA continued to deny service connection in a March 2006 and an August 2006 rating decision because the evidence did not show that the Veteran’s disability was incurred in or caused by military service. The Veteran did not file a timely notice of disagreement. Additional military personnel records were associated with the record after these rating decisions, but they are not relevant to the claim and did not warrant reconsideration of the issue; therefore, the rating decision became final. In June 2012, the Veteran attempted to reopen his claim of service connection for a back disability. In a September 2012 rating decision, VA denied the claim on the basis that the Veteran submitted no additional evidence. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In July 2014, the Veteran attempted to reopen his claim of service connection for a back disability. Since the September 2012 rating decision, evidence added to the claims file includes a July 2014 opinion from the Veteran’s private clinician. The Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final September 2012 rating decision. The private clinician stated that the Veteran reported a long-standing history of low back pain since injury in the military and opined that the Veteran’s symptoms are most likely due to previous injury as he had not sustained any recent injuries while being treated in this facility. The clinician’s opinion is presumed credible for the purposes of meeting the criteria for new and material evidence. Thus, new evidence has been submitted since VA’s September 2012 rating decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., an in-service event or nexus) necessary to substantiate the claim. Therefore, new and material evidence has been received since VA’s September 2012 rating decision and reopening the claim of service connection for a back disability is warranted. The Veteran’s petition is granted only to this extent. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. Service treatment records show that medical providers did not object to changing the Veteran’s Military Occupational Specialty (MOS) of rifleman due to the Veteran’s back disability. In a May 2014 letter, the Veteran’s private clinician stated that the Veteran reported a long-standing history of low back pain since injury in the military, and the clinician opined that the Veteran’s symptoms are most likely due to previous injury as he had not sustained any recent injuries while being treated in this facility. In a November 2014 opinion, the VA examiner stated that the Veteran’s back disability preexisted service. The examiner identified service treatment records showing that the Veteran reported being hit in the back with a baseball bat as a child and that this incident resulted in a slipped disc. In a May 2015 Notice of Disagreement, the Veteran reported that he had inconsistent employment following service due to his back disability. In a June 2016 addendum opinion, the VA examiner stated that Veteran’s back disability clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner identified, among other things, service treatment records showing no evidence of defect on x-ray and at separation, medical records showing no treatment for 15 years after service, and radiological testing in 1999 showing mild degenerative lipping on severe vertebrae. In a May 2020 correspondence, the Veteran contends that service treatment records were very vague about the incident of being hit with a bat as a child and that this injury was acute and transitory. The Veteran contends that the VA examiner did not consider that medical providers did not object to changing his MOS. The Board finds that it cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability at this time. Relevant records from the Social Security Administration were associated with the claims file subsequent to the issuance of the June 2016 statement of the case, but prior to certification of the appeal in January 2017. These records included work history post-service and medical evidence about a 1999 work-related injury. Initial consideration of evidence received prior to certification of the appeal is beyond a waiver by the claimant. 38 C.F.R. §§ 19.31, 19.37. A remand is needed to consider the additional evidence received prior to certification of the issue on appeal. The Veteran also alleges that probative treatment records during service were not obtained. In-patient treatment records for injuries received during service may exist at military or non-military facilities. Upon remand, VA should ask the Veteran to identify the approximate dates and locations of any in-patient treatment for injuries received during service and request these records. A review of the claims file also shows that VA did not attempt to obtain missing private treatment records from Northland Community Health Center. A May 2014 letter indicated that the Veteran was receiving treatment from this facility. Upon remand, the AOJ should obtain updated authorization and request these records. Since the VA examination, the Veteran has submitted additional statements concerning the severity of his pre-service injury. In addition, while the examiner opined that the Veteran’s back disability clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness, the examiner did not consider evidence of a possible change of the Veteran’s MOS due to a back disability or the Veteran’s work history post-service. Therefore, the Board finds that a remand is warranted for an addendum opinion. While the Veteran’s private clinician opined the Veteran’s current back disability was related to his in-service injury, this is based on the Veteran’s self-reported history and did not appear to consider the Veteran’s post-service back injuries. Therefore, the Board finds the opinion inadequate. This matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Northland Community Health Center and any other private treatment received for his back disability, to include arthritis. Make two requests for the authorized records from each facility, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to identify the approximate dates and locations of any in-patient treatment for back injuries received during service, to include any military or non-military facilities. Attempt to obtain records from the identified providers. All attempts and any negative responses should be documented in the Veteran’s electronic claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s back disability, to include arthritis. The examiner should consider the lay and medical evidence in the claims file, to include evidence obtained pursuant to this remand. The examiner must opine whether the Veteran’s back disability clearly and unmistakably (undebatable) preexisted the Veteran’s service, to include the Veteran’s contention that he was hit only with a plastic bat, resulting in an acute injury. If the examiner finds that it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service, to include evidence of a possible change in the Veteran’s MOS due to his back disability and his work history post-service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine 1) whether the Veteran’s back disability at least as likely as not began during active service, to include related to an in-service injury, event or disease, including the May 2014 opinion that the Veteran’s current disability was due to an in-service injury; (2) whether it is at least as likely as not that arthritis manifested within one year after discharge of service, or (3) whether it is at least as likely as not that back problems noted during service continued with same symptomology since service. 4. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be (Continued on next page) allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.